A Two Day Suspension is Not a Materially Adverse Action – Rules the Fifth Circuit

The Fifth Circuit recently addressed whether an employee who was placed on a two-day unpaid leave suffered a “materially adverse action” by the employer such as to allow him to defeat a summary judgment on a Title VII retaliation claim.

In Cabral v. Brennan, a Mexican-American employee in his mid-40s was placed on unpaid leave after he failed to produce a valid driving license requested by his supervisor. Cabral, who had a history of filing multiple discrimination, harassment and retaliation complaints, claimed that he was placed on leave in retaliation for filing such complaints. The US Post Office, his employer, claimed that he was placed on unpaid leave (and later reimbursed) because his supervisors believed that his license had been suspended for a DWI conviction.

The Fifth Circuit agreed with the US Post Office and explained that not every unpaid suspension qualified as a “materially adverse action” by an employer under Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Unlike the plaintiff in White, whose 37-day probation caused her to fall into a deep depression, Cabral failed to show that his suspension exacted a physical, emotional, or economic toll on him. His conclusory statements attesting to the emotional or psychological harm he suffered because of the two-day suspension, without documentation of any alleged harm, did not provide sufficient evidence of a materially adverse action to defeat summary judgment.

CONCLUSION: Cabral decision clarifies that an unpaid suspension is not a per se materially adverse action. An employee must show that unpaid leave caused him or her physical, emotional, or economic harm via some documentation and not just conclusory statements in order to establish a “materially adverse action” by the employer.

Leiza is a business and employment litigation attorney in Dallas, Texas. If you need assistance with a business or employment dispute contact Leiza for a confidential consultation atLeiza.Dolghih@lewisbrisbois.comor (214) 722-7108.